January 28, 2015 Ms. Cecilia Malmström European Commission Rue de la Loi/Wetstraat 200 1049 Brussels BELGIUM Dear Commissioner Malmström, We are writing as EU and US based public health organisations dedicated to ending the global tobacco epidemic. We warmly congratulate you on your recent appointment as Trade Commissioner. As you know, the recent public debate about investment protections in trade agreements, most notably the investor-state dispute settlement (ISDS) mechanism, has particular relevance for tobacco control. We strongly support steps recently taken by the European Commission to address concerns with the ISDS mechanism in the Trans-Atlantic Trade and Investment Partnership (TTIP). We are deeply concerned about the potential for the tobacco industry to misuse international trade and investment agreements to infringe on the ability of sovereign governments to enact effective non-discriminatory tobacco control policies, including those related to packaging, to protect the health of their citizens. Without such policies, tobacco will kill one billion people in this century. We write specifically to address statements made by Philip Morris International (PMI) in its December 8, 2014 letter on ISDS and its use of this mechanism to challenge tobacco control measures. PMI’s letter seeks to diminish its abuse of trade and investment agreements, with reference to its proceedings against Uruguay and Australia. While PMI makes only passing reference to its case against Uruguay, it makes misleading statements about the Australian case, and seeks to obscure the chilling effect of these cases on efforts by nations to reduce the number of their citizens who die from tobacco use and the number of their youth who become addicted to tobacco, issues that directly impact public health. First, PMI asserts that its unsuccessful constitutional challenge to Australia’s law in the High Court somehow supports its subsequent ISDS challenge under the Hong Kong – Australia bilateral investment treaty. It does not. The Australian government comprehensively won the High Court case. PMI brought the ISDS challenge against the government notwithstanding its loss in a robust, respected and independent judicial system. Secondly, PMI seeks to evade legitimate public criticism of its treaty shopping to bring its ISDS case against Australia. In its letter, PMI states that its subsidiary, Philip Morris Asia (PM Asia) made its socalled ‘investment’ in Australia in 2011, pre-dating the passage of the plain packaging law through Parliament. The fact is that prior to its ‘investment’ in February 2011, PM Asia had no interest in Australia; rather, a Swiss company, Philip Morris Brands Sàrl, owned the relevant shares. The ‘investment’ was made after Australia’s announcement on 29 April 2010 of its decision to implement plain packaging, and in the context of a pre-existing debate between PM Asia and the Australian Government about the merits of the policy. Finally, PMI cannot escape from the fact that these cases, in addition to threats to use ISDS against countries seeking to implement non-discriminatory tobacco control policies, cause regulatory chill and harm public health. For example, New Zealand has expressly announced that it will defer plain packaging until the Australian case is resolved, while many other countries closely watch the proceedings and may not be acting due to PMI’s pending litigation. Further, tobacco companies and their allies send bullying letters to countries where they aim to grow their market, like Namibia, successfully delaying and/or weakening tobacco control efforts. Even delay is a benefit to the tobacco industry, giving it additional time to recruit a new generation to its addictive and deadly product. We welcomed your recent statements regarding ISDS and the need to address weaknesses to prevent cases like those against tobacco plain packaging.i More generally, we urge the Commission to protect efforts to improve public health and to ensure that the TTIP cannot be used to challenge nondiscriminatory policies, including those aimed at tackling the significant harms caused by tobacco. Sincerely, Mervie Hara, Executive Director ASH Finland Dr. Wendy Yared, Director Association of European Cancer Leagues Dr. Ross Morgan, Chairperson ASH Ireland Georges C. Benjamin, MD, Executive Director American Public Health Association Sheila Duffy, Chief Executive Officer ASH Scotland Dr. Janet Atherton, President Association of Directors of Public Health Deborah Arnott, Chief Executive Officer Action on Smoking & Health - UK Luk Joosens, Tobacco Control Advocacy Officer Association of European Cancer Leagues Laurent Huber, Executive Director Action on Smoking & Health - US Sharon Cosgrove, Chief Executive Officer Asthma Society of Ireland Elen de Lacy, Chief Executive Officer ASH Wales Luc Van Haute, General Director Foundation Against Cancer, Belgium Sandra G. Hassink, MD, FAAP, President American Academy of Pediatrics Matthew L. Myers, President Campaign for Tobacco-Free Kids Christopher W. Hansen, President American Cancer Society Cancer Action Network Gerry McElwee, Head of Cancer Prevention Cancer Focus Northern Ireland Nancy A. Brown, Chief Executive Officer American Heart Association Harold Wimmer, National President and CEO American Lung Association Alison Cox, Director Cancer Research UK Yves Martinet, President Comité National Contre le Tabagisme French National Committee for Tobacco Control Leif Vestergaard Pedersen, Managing Director Danish Cancer Society Francis Grogna, Secretary General European Network for Smoking and Tobacco Prevention Kim Høgh, Chief Executive Officer Hjerteforeningen Danish Heart Foundation Peggy Maguire, President European Public Health Alliance Michael Rudolphie, Chief Executive Officer KWF Kanker Bestrijding Dutch Cancer Society Floris Ialianer, Chief Executive Officer Hartstichting Dutch Heart Foundation Michael Rutgers, Chief Executive Officer LONG FONDS Dutch Lung Foundation Jean Baptiste Mollet, Director La Fondation du Souffle The Foundation of the Breath M. Yves Bur, President L'Alliance Contre le Tabac French Alliance against Tobacco Lisa Surtees, Acting Director Fresh John McCormack, Chief Executive Officer Irish Cancer Society Caroline Costongs, Managing Director EuroHealthNet Prof. Aurelijus Veryga, President Lithuanian Tobacco and Alcohol Control Coalition Paul De Raeve, Secretary General European Federation of Nurses Susanne Løgstrup, Director European Heart Network Gérald Audureau, President Les Droits des Non-Fumeurs Non-Smokers Rights Association Nicola Wilson, Senior EU Health Specialist North of England EU Health Partnership Peggy Maguire, Director General European Institute of Women’s Health Andrew Dougal, Chief Executive Officer Northern Ireland Chest, Heart and Stroke Anne Lise Ryel, Secretary General Norwegian Cancer Society Christine Cars-Ingels, General Manager Riksforbundet HjartLung The Swedish Heart and Lung Association Kristina Sparreljung, Secretary General Swedish Heart Lung Foundation Sofia Belo Ravara, MD ONG portuguesas Pelo controlo do tabagismo Portuguese Tobacco Control Movement Derek Bell, President Royal College of Physicians of Edinburgh Chair Secretary General Tobaksfakta Independent Think Tank, Sweden Andrea Crossfield, Chief Executive Officer Tobacco-Free Futures Florence Berteletti, Director Smoke Free Partnership John Britton, Director UK Centre for Tobacco and Alcohol Studies Scott Crosby, Regional Tobacco Policy Manager Smoke-Free Yorkshire and Humber Jan Peloza, President Youth Network No Excuse Slovenia Dr. Leandro Plaz Celemin, President Fundacion Espanola del Orazon Spanish Heart Foundation i Cecilia Malmström, “Debating TTIP”, Speech at Open Europe & Friedrich Naumann Stiftung, Brussels, 11 December 2014.